Ballot fraud defense seeks FBI's input

Subpoena request asks agents to testify on Ed McDonough's behalf

Published 11:00 pm, Sunday, January 8, 2012

TROY — The lawyer for Rensselaer County Democratic Elections Commissioner Edward McDonough scheduled to go to trial on ballot fraud charges next week, has asked for a hearing on his request to subpoena two FBI agents and a retired State Police senior investigator as defense witnesses.

In motions filed Friday, attorney Brian Premo said testimony by the individuals will help him present his defense that special prosecutor Trey Smith used his client, and codefendant former City Councilman Michael LoPorto, as scapegoats suggesting that other Democrats, many who have since received plea deals for their cooperation or have not been charged at all, conspired to have McDonough and LoPorto take the fall and Smith went along with it as part of a political vendetta and cover up.

Premo alleges that the State Police and the FBI sought to take over the investigation and expand it to include other high profile Democrats he alleges Smith wanted to protect. Premo has asked visiting Greene County Judge George Pulver Jr. to subpoena State Police Senior Investigator Christopher M. O'Brien, who retired Dec. 31, and FBI special agents Alexander McDonald and Julie Mounce as defense witnesses.

"At the same time the SDA (special district attorney) took action to derail the federal investigation, Sr. Inv. O'Brien sought the assistance of the FBI and, it is believed, looked for federal authorities to supercede in the prosecution of the case," Premo wrote in his motion.

A hearing is scheduled Wednesday before Pulver on the subpoena motion, Premo said Sunday night.

McDonough and LoPorto were indicted in January 2011 on numerous felony forgery charges for allegedly altering nearly 50 absentee ballots to help Democratic candidates win the Working Families Party line in the 2009 primary in Troy.

Their trial begins Jan. 17 and Premo requested Pulver hear his motions Monday morning in Rensselaer County Court. By Friday afternoon, the judge had not contacted the county clerk's office to set up a hearing.

The FBI activity in the case was revealed in November when a private email sent by Smith to State Police investigators surfaced that suggested Democratic District Attorney Richard McNally was a target of the FBI. One of McNally's main campaign workers in his 2007 bid for the office was former Troy City Clerk William McInerney, who has pleaded guilty to forging ballots and awaits sentencing. Investigators were looking at ballots in 2007, 2008 and 2009.

"Remember (FBI Inv. Alexander) McDonald's last statement to me at the FBI — he asked why we did not take a statement from McNally re: whether McInerney made any comments to him when he asked McNally for advice on who to choose as a lawyer," Smith wrote in the email. "McDonald thinks he's got a career-maker in McNally; a crooked elected prosecutor is a much juicer target than an appointed elections commissioner," the email says.

"By raising this presumably false allegation against McNally, Premo can fashion a conspiracy defense on the case against McDonough," Smith wrote in the email. "I am a friend of McNally's. We worked together as DAs, and I attend his Labor Day barbecue every year. Not real close, but close enough to smear me."

McNally has not been publicly named as a target in the probe and the email surfaced just weeks before he faced Republican Joel Abelove in a re-election bid. McNally easily won.

"The only thing this proves is that the special prosecutor was doing his job and keeping an open mind to anything going on,'' McNally said after the email surfaced.